622 N.E.2d 354 | Ohio Ct. App. | 1993
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *319 This is an accelerated appeal from a judgment issued by the Huron County Probate Court in an adoption case. In this case, the probate court found that a natural father had unjustifiably failed to support and maintain his minor child for a period of at least one year and, as a result of that failure, waived his right to withhold his consent to the child's adoption. Because the trial court's findings on this issue are not supported by the record, we reverse.
Appellant, Michael D. Osborn, is the natural father of Delayne Allen Osborn. Delayne was eight years old when, in January 1992, Delayne's stepfather, appellee William Kessler, petitioned to adopt him. Instead of obtaining appellant's consent to this adoption as generally required by R.C.
On April 28, 1992, the R.C.
Appellant's former spouse testified that during the period in question, the "check for approximately $253" was the only child support received for Delayne. Further, she disclosed that during this period Delayne had incurred substantial medical bills, which appellant had failed to pay. The former spouse did concede that before 1991, appellant had provided medical insurance for Delayne. However, at some point in 1990, the insurance carrier refused to cover medical expenses. *320
Appellant testified that until April 1990, he had been employed at the Norwalk Foundry Company. He then became unemployed when that firm closed. According to appellant, he was ineligible for unemployment compensation. Appellant further testified that after April 1990, his only regular employment was for a six-week period in October and November 1991. Appellant stated that for most of the one-year period he survived on general assistance payments while living with his parents or in rooms donated by friends.
On cross-examination, appellant admitted that during the period in question he had sometimes been paid in cash for odd jobs performed for his parents. Appellant conceded that he had been found in contempt for failure to pay support in June 1991. Even so, appellant stated that in the following October when he did find work he had not notified HCCSEA nor had he informed his employer that child support was to be withheld from his wages.
On redirect, appellant testified that for the entire period in question he was actively seeking work and, to that end, had participated in a two-week Huron County Social Services job program wherein he had prepared a resume and a letter of inquiry for prospective employers. The resume and inquiry letter were introduced into evidence along with a seven-page "job leads log" detailing employers whom appellant testified he had contacted for work.
In rebuttal, appellee recalled appellant's HCCSEA caseworker, who testified that the June 1991 contempt hearing resulted in a "seek work order" and that, pursuant to that order, appellant had submitted weekly forms of employment contacts to HCCSEA between July 25, 1991 and September 13, 1991. The caseworker reiterated that appellant had failed to notify the agency in October 1991 when he became employed. Appellee also recalled appellant's former spouse, who testified that at no point had she ever absolved appellant from his support obligation. Additionally, she identified the referee's report and recommendation from the June 1991 contempt hearing which was introduced into evidence.
On this evidence, the trial court took the matter under advisement and, on May 13, 1992, entered a judgment entry finding that appellee had established by clear and convincing evidence that appellant had failed to support his child for the one-year period immediately preceding the filing of the adoption petition. The court found that this failure was without justification. Therefore, the trial court determined that pursuant to R.C.
"The court erred in finding that respondent father had not justified his failure to support and thus had waived his right to withhold his consent to the adoption of his son."
The principal issue for us to decide is whether appellee met his heavy burden of proving that appellant had unjustifiably failed to support his child for a period of one year so as to extinguish appellant's fundamental parental rights. In re Bovett
(1987),
"Our analysis must begin with the recognition that the right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law. Adoption terminates those fundamental rights. For this reason, we have held that `* * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.'" (Citations omitted.) In re Adoption of Masa (1986),
Generally, parental consent is a prerequisite to adoption.McGinty v. Jewish Children's Bur. (1989),
Satisfying the statute, therefore, is not an easy task. The petitioner for adoption who seeks to utilize the statute in lieu of a parent's consent has the burden of proving by clear and convincing evidence that the natural parent has not only failed to support the child for the statutory period but that such failure was without justifiable cause. In re Adoption of Masa,supra, at paragraph one of the syllabus. Once a petitioner has satisfied the first prong of the test, the burden of going forward with the evidence "shifts to the natural parent to show some facially justifiable cause for such failure." In re Adoptionof Bovett, supra, at paragraph two of the syllabus. Even so, the ultimate burden of proof remains with the petitioner. Id. It should be noted, however, that the trial court's inquiry is directed to the "entire duration of the failure." (Emphasissic.) Id.,
The case at bar presents questions about both prongs of theMasa/Bovett test. Those questions are (1) whether monies involuntarily intercepted from an individual's federal income tax refund, but, nevertheless, used to support a minor child, constitute "support," and (2) assuming, arguendo, that a tax intercept does not constitute "support," whether the petitioner has met his burden to prove that such lack of support was unjustifiable.
The finding of the probate court "will not be disturbed on appeal unless such determination is against the manifest weight of the evidence." In re Adoption of Bovett, supra, at paragraph four of the syllabus, following In re Adoption of Masa, supra,
at paragraph two of the syllabus. A determination is not against the manifest weight of the evidence when it is supported by competent, credible evidence. C.E. Morris Co. v. Foley Constr.Co. (1978),
Ohio courts and this court have repeatedly held that any contribution toward child support, no matter how meager, satisfies the maintenance and support requirements of R.C.
Appellee, citing In re Adoption of Rantamki (Mar. 30, 1990), Astabula App. No. 88-A-1422, unreported, 1990 WL 36564, argues that because the money in this matter was derived from intercepting appellant's tax refund rather than derived from withholding his wages, the character of the money changes so as to make it something other than a payment for support and maintenance. We disagree. The decision in Rantamki was based, not on the source of the money, but rather on the fact that it was dispersed to the county department of human services to offset previously received welfare payments. None of the money from *323 the Rantamki tax refund intercept appears to have been used for the current support of the child.1 Therefore, Rantamki is factually distinguishable.
To hold that a court may terminate parental rights based upon an amorphous notion of the degree of the voluntariness of the support would be to chart a perilous course. Is a court-ordered wage withholding more or less coercive than a court order requiring a parent to establish and maintain a savings account which would be subject to levy? Are either of these orders more voluntary than executing upon a federal income tax refund? If an ex-spouse forecloses on real property based upon arrearages which were reduced to judgment and obtains a large monetary sum, is this not to be considered support for R.C.
Today, the methods are many and varied for collecting and paying child support. How do we draw the line in determining whether a payment was voluntary, somewhat voluntary, somewhat involuntary, or involuntary? The answer is simple: we do not. In this case, during the year immediately preceding the filing of the petition for adoption, appellant's federal income tax refund check of $253.80 was paid to HCCSEA, credited to appellant's account, and transferred by separate check to appellant's former spouse as child support. We find that this payment constitutes support and, therefore, R.C.
Appellant's justification for his failure to pay support is uncontroverted. Therefore, the trial court's finding that appellant's failure to support was unjustifiable is not supported by the evidence. Accordingly, appellant's sole assignment of error is well taken.
On consideration whereof, the court finds substantial justice has not been done the party complaining, and the judgment of the Huron County Probate Court is reversed. It is ordered that appellee pay court costs of this appeal.
Judgment reversed.
GLASSER, P.J., concurs.
MELVIN L. RESNICK, J., concurs in judgment only.